Kerala High Court
Bijoy Antony vs State Of Kerala on 21 March, 2025
CRL.REV.PET NO. 1596 OF 2015 1 2025:KER:23982
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
CRL.REV.PET NO. 1596 OF 2015
Crl.A NO.176 OF 2014 OF SESSIONS COURT, KALPETTA,
WAYANAD
STC NO.1355 OF 2013 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, KALPETTA
REVISION PETITIONER/APPELLANT/ACCUSED:
BIJOY ANTONY,
S/O.A.J.DIAS, MALIYYEKKAL HOUSE,
LAL VIHAR, VYTHIRI TALUK, KALPETTA NORTH.
BY ADV S.M.PRASANTH
RESPONDENTS/RESPONDENTS & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
2 M.SASIKUMAR,
S/O.RAGHAVAN, MANDAKAKUNI HOUSE,
PUTHOORVAYAL POST-673114.
BY ADV CELINE JOSEPH
R1 BY SMT.SEETHA S. PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 19.02.2025, THE COURT ON 21.03.2025 DELIVERED THE
FOLLOWING:
CRL.REV.PET NO. 1596 OF 2015 2 2025:KER:23982
ORDER
This revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, by the accused in STC No.1355 of 2013 on the file of the Judicial First Class Magistrate Court, Kalpetta, who was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.5,00,000/- and in default of payment of compensation to undergo Simple Imprisonment for a further period of two months for the offence under Section 138 of the Negotiable Instruments Act.
2. The appeal filed by the petitioner, as Crl.Appeal No.176 of 2014 before the Sessions Division, Kalpetta, was dismissed as per the judgment dated 20.10.2015, passed by the learned Sessions Judge. Being aggrieved, the petitioner is now before this Court. For convenience, parties are hereinafter referred in this order in their status as they were before the trial court unless otherwise stated.
3. The case of the complainant is that the accused borrowed an amount of Rs.5,00,000/- from him, promising to repay within one month. Since he did not repay the amount as promised, the CRL.REV.PET NO. 1596 OF 2015 3 2025:KER:23982 complainant approached him on several occasions and finally, he issued Ext.P1 cheque dated 20.12.2012, drawn on Canara Bank, Kalpetta Branch, and on presentation through his Banker, the Vijaya Bank, Kalpetta Branch, the cheque was dishonoured for the reason 'funds insufficient', and it was intimated to the complainant by virtue of Ext.P2 memo dated 29.12.2012 issued by the drawee Bank. The complainant then issued Ext.P3 lawyer notice dated 11.01.2013, which was returned unclaimed since the accused evaded the notice. Thereafter, the complainant filed the complaint under Section 138 of the Negotiable Instruments Act, on completion of the statutory period to be granted to the accused for payment of the amount covered by the cheque.
4. From the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P8 documents were marked before the trial court. When examined under Section 313 Cr.P.C., the accused denied all the incriminating evidence brought out against him. From the side of the accused, DW1 was examined and Exts.D1 and D2 documents were marked. After hearing both sides, the trial court found the accused guilty and sentenced him as said above, which was confirmed in the appeal also. CRL.REV.PET NO. 1596 OF 2015 4 2025:KER:23982
5. Heard the learned counsel for the petitioner/accused, the learned Public Prosecutor and the learned counsel for the 2 nd respondent/complainant.
6. The learned counsel for the petitioner/accused argued that in the impugned judgment, the learned Sessions Judge found that the accused could rebut the presumptions, which is available to the complainant under Section 139 of the Negotiable Instruments Act, by proving a previous transaction of Rs.4,50,000/-, in between the parties though the complainant claimed that the said amount was returned by the accused. To prove the payment of Rs.5,00,000/- to the accused, the complainant relied on Ext.P8 account statement, wherein Rs.5,00,000/- was entered as paid to the accused. But the complainant could not prove that the signature seen in the reverse side of Ext.D2 cheque, through which the accused allegedly encashed Rs.5,00,000/- as that of the accused. Learned Sessions Judge went wrong by comparing the signature of the accused seen in Ext.P1 with that seen in Ext.D2 without sending the cheques for expert opinion. Therefore, the complainant failed to prove that Ext.P1 cheque was issued for a legally enforceable debt or liability. CRL.REV.PET NO. 1596 OF 2015 5 2025:KER:23982 The learned counsel placed reliance on the judgments of the Apex Court in Dattatraya v. Sharanappa [(2024) 8 SCC 573] in support of his argument that an accused cannot be obliged to rebut the presumption under Section 139 of the Negotiable Instrument Act through an unduly high standard of proof and the liability of the defence is not that of proving its case beyond reasonable doubt. By relying on the judgment of the Apex Court in Rajco Steel Enterprises v. Kavita Saraff and another [(2024) 9 SCC 390] the learned counsel argued that it is the burden of the complainant to prove that the cheque was issued in discharge of a legally enforceable debt or other liability and in the case of offering a plausible defence regarding the reason for which funds of the complainant had come to the account of the accused, the acquittal of the accused is legal. By relying on the judgment of this Court in Adline Pancy Vijayan v. Navas K.C [ 2024 (7) KHC 250] the learned counsel argued that the accused can prove his defence by drawing inferences from the materials already on record, including the complainant's evidence, circumstances of the case and also by leading his own evidence. If the accused successfully creates doubts in the complainant's claim about the CRL.REV.PET NO. 1596 OF 2015 6 2025:KER:23982 existence of a legally enforceable debt, then the burden of proof shifts back to the complainant who is required to prove the guilt of the accused beyond reasonable doubt. In order to argue that the appellate court ought not have compared the signature of the accused seen in Ext.D2 cheque with that in Ext.P1 cheque, under Section 73 of the Indian Evidence Act, the learned counsel relied on the judgment of this Court in Sivadas S v. State of Kerala [2023 (1) KHC 482] and Kunhalima v. Mahammed [2024 KHC 267]
7. On the other hand, the learned counsel for the 2nd respondent/complainant argued that during cross-examination of PW1, the receipt of Rs.5,00,000/- by the accused from the complainant is not denied. From Ext.P8 account statement, it is proved that the complainant paid a sum of Rs.5,00,000/- to the accused and it is in discharge of that amount, the accused issued Ext.P1 cheque. When the accused admits his signature in Ext.P1 cheque, the burden is heavily upon him to prove that the cheque was not issued in discharge of a legally enforceable debt or liability. The financial capacity of the complainant to lend money is also not disputed by the accused. The learned counsel placed CRL.REV.PET NO. 1596 OF 2015 7 2025:KER:23982 reliance on the judgments of the Apex Court in Kalamani Tex (M/s) and Another v. P. Balasubramanian [2021 (2) KHC 517] in support of her argument that if the accused admits his signature in the cheque and the issuance of the same is proved, then the burden is heavily upon the accused to prove that the cheque was not issued in discharge of a legally enforceable debt or liability.
8. I have carefully gone through the impugned judgments passed by the courts below. The oral evidence and the documentary evidence tendered by the parties before the trial court were analysed in detail by the trial court as well as the appellate court.
9. It is trite that a Court exercising revisional jurisdiction will interfere with orders or judgments of the courts below only if those orders or judgments are suffering from incorrectness, illegality or impropriety. Unless the judgment passed by the learned Magistrate or by the Appellate Court is perverse or the view taken by the Court is unreasonable or there is non- consideration of any relevant material, or there is palpable misreading of records, the revisional Court will not be justified in CRL.REV.PET NO. 1596 OF 2015 8 2025:KER:23982 interfering with the judgment. The revisional Court cannot act like an Appellate Court.
10. In State of Kerala v. Jathadevan Namboodiri [AIR 1999 SC 981], the Apex Court held thus:
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
(Emphasis Supplied)
11. In Munna Devi v. State of Rajasthan [AIR 2002 SC 107] the Apex Court in paragraph 3 held thus:
CRL.REV.PET NO. 1596 OF 2015 9 2025:KER:23982 "3. We find substance in the submission made on behalf of the appellant. The revision power under the code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."
(Emphasis Supplied)
12. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Others [2015 (3) SCC 123], it has been held by the Apex Court thus:
"Revisional power of the court under S.397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily CRL.REV.PET NO. 1596 OF 2015 10 2025:KER:23982 or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction".
13. Keeping in mind the above legal position, I have carefully gone through the judgments of the trial court as well as the appellate court and the materials on record. As said above, PWs 1 and 2 gave evidence before the trial court regarding the lending of money and issuance of Ext.P1 cheque in discharge of that debt by the accused. In order to prove lending of money, Ext.P8 account statement of the complainant was produced before the trial court, which would show that the accused encashed the money on 13.08.2012 from the Bank concerned, through a cheque. Though by producing Ext.D2 copy of the cheque through the witness concerned, the accused contended that the signature seen in the reverse side of Ext.D2 is not that of him, the trial court as well as the appellate court refused to accept his contention.
14. The Negotiable Instruments Act raises some presumptions in favour of the complainant under Sections 118 and 139 of the said Act. The presumptions under Sections 118 and 139 are rebuttable presumptions. These presumptions are available only if execution of the cheque is admitted by the accused or only if it is proved by the complainant that the cheque is drawn by the CRL.REV.PET NO. 1596 OF 2015 11 2025:KER:23982 accused. Whether the presumptions are rebutted or not would depend upon the facts and circumstances of the case. If the basis for drawing the presumptions exists, the court shall draw the presumptions under the said sections, in which case it is the burden of the accused to rebut those presumptions.
15. It is true that in paragraph 13 of the appellate judgment, it was found by the appellate court that on evaluating the evidence of PW1 and DW1, it appears that the accused could rebut the presumption which is available to the complainant under Section 139 of the Negotiable Instruments Act. But, how the appellate court reached that conclusion is not detailed in that judgment. That observation was made without sufficient reasoning. In such circumstances, the observation made by the appellate court regarding the discharging of burden under Section 139 of the Negotiable Instruments Act by the accused cannot be given importance.
16. In Kalamani Tex (M/s) and Another v. T. Balasubramanyan [2021 (2) KHC 517] the Apex Cort held thus:
CRL.REV.PET NO. 1596 OF 2015 12 2025:KER:23982 "Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S.139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque / negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243 : (2019) 18 SCC 106 : 2019 (1) KLD 581 : 2019 (2) KLJ 350 :
AIR 2019 SC 1876 : 2019 CriLJ 2400), P.18 in the following words:
"In the case at hand, even after purportedly drawing the presumption under S.139 of the NI Act, the trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the CRL.REV.PET NO. 1596 OF 2015 13 2025:KER:23982 accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant - accused..."
(Emphasis Supplied)
17. In Sumeti Vij v. M/s Paramount Tech. Fab Industries, [2021(2) KHC 658] the Apex Court held thus:
"There is a mandate of presumption of consideration in terms of the provisions of the Act and the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of S.138 of the Act"
18. From the dictum laid down in the above judgments, it is clear that when the accused admits his signature in the cheque and it's execution is proved by supporting evidence on the part of the complainant, it is the burden of the accused to rebut the presumptions under Sections 118 and 139 of the Negotiable Instruments Act. In this case, as already stated, the signature of the accused in Ext. P1 cheque is not disputed. While considering CRL.REV.PET NO. 1596 OF 2015 14 2025:KER:23982 the entire facts and circumstances of the case, it is clear that the accused is now taking a bald defence with a view to escape from the liability towards the complainant. From the evidence adduced by PWs 1 and 2 and Exts.P1 to P8 documents, it is proved that the accused issued Ext P1 cheque for a sum of Rs.5,00,000/- in discharge of a legally enforceable debt towards the complainant. The complainant has succeeded in proving the transaction, the signature and the handing over of the cheque by the accused. There is no sufficient evidence adduced by the accused to rebut the presumptions available under Sections 118 and 139 of the Negotiable Instruments Act. Mere denial of passing of consideration and the existence of debt is not sufficient to rebut the said presumptions. Something that is probable has to be brought on record for getting the onus of proof shifted to the complainant. The accused failed to substantiate the case set up by him.
19. In Dattatraya [(2024) 8 SCC 573] the Apex Court held that the liability of the defence in cases under Section 138 of the Negotiable Instruments Act is not that of proving his case beyond reasonable doubt. Similarly in Rajco Steel Enterprises CRL.REV.PET NO. 1596 OF 2015 15 2025:KER:23982 [(2024) 9 SCC 390] the Apex Court held that if the accused able to put up a plausible defence regarding the reason for which funds of the complainant had come to his account, the acquittal of the accused is justified. Likewise, in Adline Pancy Vijayan [2024 (7) KHC 250] this Court held that if the accused successfully creates doubts in the complainant's claim about the existence of a legally enforceable debt, then the burden of proof shifts back to the complainant who is required to prove the guilt of the accused beyond reasonable doubt. There is no dispute regarding this legal position stated by the Apex Court as well as this Court. But in this case as noticed above the complainant succeeded in proving that he lent money to the accused. The defence of the accused cannot be said as plausible one from the available evidence on record. Hence the judgments of the Apex Court in Dattatraya [(2024) 8 SCC 573] and Rajco Steel Enterprises [(2024) 9 SCC 390] and that of this Court in Adline Pancy Vijayan [2024 (7) KHC 250] are not applicable to the facts of this case.
20. While going through the materials on record, I find no sufficient circumstance to reach to a conclusion that the trial court CRL.REV.PET NO. 1596 OF 2015 16 2025:KER:23982 as well as the appellate court failed to appreciate the evidence on record in a proper perspective. The comparison of signature of the accused done by the appellate court is also assuming no importance for the reason that even otherwise the evidence adduced from the side of the complainant proves that the accused issued Ext.P1 cheque in discharge of a legally enforceable debt. Therefore, the judgments in Sivadas S. [2023 (1) KHC 482] wherein this Court held that conclusions arrived based on a casual or routine glance or perusal shall not be relied on to enter into a finding leading to a conviction of the accused and in Kunhalima [2024 KHC 267] wherein it was held by this Court that the comparison of signatures is a matter coming within the province of an expert which has to be done on the basis of various specified parameters and therefore arriving at a conclusion on the validity of the documents by mere comparison is grossly unsafe if not legally impermissible, have no relevance to the facts of this case. In such circumstances, I find no ground to interfere with the conviction entered by the trial court.
21. At the same time, it is to be noted that the accused was sentenced to undergo simple imprisonment for a period of six CRL.REV.PET NO. 1596 OF 2015 17 2025:KER:23982 months and to pay compensation of Rs.5,00,000/- with a default sentence of simple imprisonment for two months by the trial court and it was confirmed in the appeal. While considering the facts of the case, I am of the view that the substantive imprisonment imposed by the trial court is on the higher side.
In such circumstances, the revision petition is allowed in part, by confirming the conviction; but modifying the substantive sentence as imprisonment till the rising of court. The compensation part and default sentence imposed by the trial court are maintained. The petitioner/accused shall appear before the trial court on 15.04.2025 to undergo the modified sentence hereby imposed.
Sd/-
MURALEE KRISHNA S., JUDGE DSV/-